Citation NR: 9724090
Decision Date: 07/11/97 Archive Date: 07/21/97
DOCKET NO. 91-16 235 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for hepatitis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
James L. March, Counsel
INTRODUCTION
The veteran had active service from November 1968 to February
1971. This matter comes to the Board of Veterans’ Appeals
(Board) from a January 1990 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida, which denied entitlement to service
connection for hepatitis.
In July 1991, the Board denied service connection for
hepatitis. The veteran filed a motion for reconsideration
which was denied by the Board in August 1995. The veteran
appealed the Board’s July 1991 decision to the United States
Court of Veterans Appeals (Court). In November 1996, the
Court granted a joint motion for remand, vacating the Board’s
July 1991 decision and remanding for additional proceedings.
After the Board’s July 1991 decision, the veteran attempted
to reopen the claim for service connection for hepatitis. In
January 1995, the RO declined to reopen the claim, finding
that the veteran had failed to submit new and material
evidence. The veteran filed a timely Notice of Disagreement
and Substantive Appeal, and the RO certified the issue for
appeal to the Board. In light of the Court’s decision to
vacate the Board’s July 1991 decision, there is no longer a
final Board decision. Thus, the issue of whether new and
material evidence has been submitted to reopen the claim is
moot.
REMAND
It was determined in the joint motion that the Board had
violated the Court’s holding in Colvin v. Derwinski, 1
Vet.App. 171 (1991). Service medical records show that in
early 1971, the veteran was hospitalized and treated for
acute viral hepatitis, which was thought to be serum
hepatitis or drug-induced hepatitis. The Board noted that in
July 1989, the veteran was diagnosed as having chronic active
hepatitis. The Board, however, also noted that there was no
etiological explanation for the hepatitis. The Board stated
that the hepatitis “could very well be associated with toxic
substances actively used by the veteran over the years.”
Although the Board also found, in essence, that there had
been no medical attribution of the veteran’s hepatitis in
1989 to the acute viral hepatitis diagnosed in service, the
Board’s statement concerning a possible relationship between
hepatitis and toxic substances was deemed to violate Colvin.
The veteran’s representative has requested that the case be
remanded for a medical examination and opinion to determine
whether the veteran currently has hepatitis and, if so,
whether it is related to the hepatitis in service.
In light of the foregoing, the Board is REMANDING this case
for the following actions:
1. The RO should contact the veteran and
request that he identify the names,
addresses, and approximate dates of
treatment for all VA and non-VA health
care providers who have treated him since
service for hepatitis. With any
necessary authorization from the veteran,
the RO should attempt to obtain copies of
pertinent treatment records identified by
the veteran in response to this request,
which have not been previously secured.
2. Then, the RO should arrange for the
veteran to undergo a comprehensive
medical examination to determine the
nature and extent of his hepatitis. All
indicated tests must be conducted. The
claims file must be made available to and
reviewed by the examiner prior to the
requested study. The examiner should
provide an opinion as to whether it is at
least as likely as not that any present
hepatitis is related to the hepatitis for
which the veteran was treated during
service. If not, the examiner should
explain, with complete medical rationale,
the distinction between the two types of
hepatitis. A complete rationale for all
opinions expressed must be provided. In
light of the veteran’s incarceration, the
RO should take note of the Court’s
instructions in Wood v. Derwinski, 1
Vet.App. 190, 193 (1991), (the Court
instructed those who adjudicate claims of
incarcerated veterans to be certain that
they tailor their assistance to the
peculiar circumstances of confinement).
See also Bolton v. Brown, 8 Vet.App. 185,
190-91 (1995).
3. After undertaking any additional
development deemed appropriate, the RO
should readjudicate the issue of
entitlement to service connection for
hepatitis.
If the benefit sought on appeal is not granted to the
veteran’s satisfaction, he and his representative should be
issued a Supplemental Statement of the Case and be afforded a
reasonable opportunity to reply. Thereafter, the case should
be returned to the Board for further appellate consideration,
if otherwise in order. In taking this action, the Board
implies no conclusion as to any ultimate outcome warranted.
No action is required of the veteran until he is otherwise
notified by the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
RICHARD B. STANDEFER
Member, Board of Veterans’ Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans’ Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
- 2 -